Medium Neutral Citation [2001] VCAT 1974

1. Twenty-eight days from this day access is granted to

2. The respondent's determination is otherwise affirmed.

3. Application by applicant for an order under s.78(2) of the Victorian Civil and Administrative Tribunal Act 1998 is refused.

1. Mr Ian Price, the applicant in this matter, was the Chief Executive Officer of the Castlemaine District Community Health Centre Inc (the Centre). The Centre is a not for profit incorporated body which provides community services in Castlemaine. Mr Price was appointed its Chief Executive Officer in 1998 and had his services terminated in May 2001. Apparently, issues relating to his termination are the subject of current applications before the Australian Industrial Relations Commission and the Federal Court.

2. On 31 May 2001, Mr Price's solicitor made a request on his behalf, for access to 13 categories of documents of the Centre.

3. On 25 July 2001 , the applicant lodged an application for review, under s.53 of the Freedom of Information Act 1982 (the FOI Act) on the basis that there was a deemed refusal to grant access to the documents sought.

4. On the same day, the 25 July 2001, the request was in fact responded to by the respondent's solicitor on behalf of the Centre. Access to the majority of documents sought was granted. However, there were some documents or parts of documents to which access was denied. Apart from one part of one document, access to which was refused on the basis that it was exempt from release under s.33(1) of the FOI Act, the respondent claimed that :

"Each of the parts of documents and the documents (sic) which access was refused are exempt pursuant to section 32(1) of the Act because their disclosure would involve the disclosure of documents and parts of documents which each would be privileged from production in legal proceedings on the ground of legal professional privilege".

5. On 31 August 2001, the Tribunal made directions for the filing of material in compliance with s.49 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) and for the filing of legal contentions and statements of public interest.

6. The matter came on for hearing before me on 27 September 2001.

7. The documents in dispute are set out in the schedule attached to the s.49 statement. The schedule is annexed to these reasons. The material withheld, was filed in confidence with the Tribunal.

8. At the outset, Mr Willoughby-Thomas, solicitor appearing for the applicant, made it clear that his client was not seeking access to a number of the documents to which access was denied. These included Documents 1-9 and 15. Documents 1 to 9 are letters and faxes seeking and giving legal advice. Document 15 concerns another person. As the hearing progressed, the respondent no longer claimed exemption for certain parts of the remaining documents. What remains withheld are parts of the Centre's Board agendas and parts of minutes of some meetings. The agenda and minutes are confined to a fairly short period of time, a period just prior to Mr Price's termination.

9. Mr Snowdon, solicitor for the respondent, submitted that the documents which remained, were exempt from release under s.32(1) of the Act.

"32(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege".

11. The documents, parts of which have not been released, fall into two categories. First, documents 10 and 12 are the Centre's Board Agendas. Mr Snowdon submitted that the parts not released record or report the giving or obtaining of legal advice to or by the respondent. Second, documents 11, 13 and 14 were Minutes of the Board meetings of the respondent. Mr Snowdon submitted that the parts not released relate to the giving or obtaining or recording of legal advice received.

12. Mr Snowdon submitted that documents prepared by the respondent which substantially record legal advice requested or received or which summarise the same are subject to legal professional privilege. He referred to and relied on a decision of the New South Wales Supreme Court, Standard Chartered Bank of Australia v Antico (1995) 36 NSWLR 87. He submitted that the respondent had not and did not at any time waive legal professional privilege.

13. Mr Willoughby-Thomas submitted that Minutes of a Board of a public institution cannot, by definition, meet the dominant purpose test nor are they confidential communications, an essential element for any claim of privilege. He submitted that the reference to "minutes" in Antico's case, did not contemplate minutes of a public body.

14. I do not accept Mr Willoughby-Thomas' submission that minutes by definition cannot be privileged because they do not meet the dominant purpose test nor that the reference to "minutes" is to be interpreted as narrowly as he submitted.

15. Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244; Standard Chartered Bank of Australia Ltd v Antico (1995) 36 NSWLR 87 and State Bank of South Australia v Smoothdale (No 2) [1995] SASC 5070; 1995 64 SASR 224 stand for the proposition that a written record, by a client or employees of the client, of confidential legal advice by a solicitor to a client will itself be privileged. In Antico's case, it is made clear that the sole purpose test, as it was then, is to be applied to the original communication and will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test. This with the rider however, that the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than something else.

16. As Hodgson J states at p.93 of Antico's case :

"Turning to the present case, I accept that if an officer of the company had summarised a confidential legal advice for the benefit of the board of directors, that summary would be privileged under Lockhart J's category (d). However, it seems to me that if the board goes on to discuss a legal proposition in the opinion and to take it into account in making a commercial decision, and if the motivation of the company is relevant to facts in issue in the case, the discussion of the legal proposition would not be privileged, unless either it would as a matter of substance disclose the confidential communication, or it would be unfair to put the company in the position of having to give up the privilege if it wished to qualify or explain the discussion in some way".

One therefore needs to examine the minutes and agenda and consider whether they as a matter of substance disclose a confidential communication.

17. With these principles in mind, I consider the documents.

18. This document is an agenda for a special meeting of the Governance Board for 10 April 2001. It is rather a more fulsome form than might customarily be expected for an agenda, and includes more than just a list of the items to be addressed. The paragraphs that now remain unreleased are 4.1, 4.2, 4.3, 5, 6 and 8.3.

19. According to their text they purport to record the legal advice the agency received and, in those circumstances, I find those parts of the agenda exempt from release under s.32(1).

20. These are the minutes of the special meeting of 10 April 2001.

21. Three sentences have been withheld being paragraphs 2, 3 and 4. The first and third sentences withheld indicate the legal advice received. As it records the legal advice received, they are exempt from release under s.32(1).

22. The middle sentence, paragraph three, merely states what will be provided for redundancy and does not reflect legal advice. The exemption claimed cannot stand.

23. Whilst Mr Snowdon agreed with the difficulties of that exemption claim standing, he did not consent to its release but did not strongly contend for its exemption. Paragraph 3 is to be released to the applicant.

24. This document is the Agenda for a Special Meeting of the Governance Board for 7 May 2001. Again, it is in rather a fulsome form.

26. Item 5 is a report on advice from the Board's solicitors. It purports to reflect legal advice received and I therefore find the exemption claimed is made out, and that it is exempt from release.

27. Item 7 contains a series of recommendations put forward by the executive. Mr Snowdon submitted that having regard to the earlier exempt documents, the recommendations are made on the basis of legal advice received.

28. The creation of the recommendations in that context does not make them privileged from disclosure. They would only be exempt from release if they disclosed the legal advice itself received. It is difficult to see how the release of the list of recommendations discloses the legal advice. I am not satisfied that the exemption claimed is made out, particularly as the recommendations canvassed are mostly reflected in the minutes already released. Item 7 should be released to the applicant.

29. This document is the Minutes of the Meeting of 7 May 2001. Item 3 is withheld. Mr Willoughby-Thomas clarified in the hearing, his client was not seeking access to the letter itself referred to. On that basis, Mr Snowdon did not object to the release of that item.

30. The exempt material which the applicant seeks access to, is an item concerning the applicant in Board Minutes of 22 May 2001 and forms part of the Board's in- camera session.

31. It sets out the solicitor's advice to the Board and is clearly exempt from release under s.32(1).

32. Although I have found documents exempt from release under s.32(1), that is not the end of the matter.

33. Section 50(4) of the Act gives the Tribunal the power to grant access where it is of the opinion that the public interest requires that access be granted.

"50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 3(3) or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act".

35. Section 50(4) is subject to some exceptions, which are not relevant in this case.

36. The task of the Tribunal is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure by specific provisions of the Act and requires that access should be granted.

37. "Public interest" is a term not defined in the legislation. However, the case law is clear in that we need to distinguish between what is in the public interest and what is of interest for the public to know.

38. The applicant made the following submissions in relation to the release of the material on public interest grounds :

"1. The public have a general right to know about the administration of governmental matters including public institutions.

2. It is important that public institutions be accountable and subject to scrutiny.

3. It is important that the minutes of meetings of the Boards of public institutions be available to the public in unedited form.

4. Health centres receive substantial funds directly and indirectly from the public purse.

5. It is contrary to the public interest that in a democratic society there should be restraint on information relating to government or government agencies when the only vice of that information is that it enables the public to discuss, review and criticise the actions of government or government agencies and to make informed judgments thereon.

6. The subject matter of the allegedly privileged material namely the termination of the Chief Executive Officer, was publicised within the Castlemaine community by the respondent and is a matter of public debate. Release of the documents would either confirm or dispel grounds for public disquiet.

7. It is in the public interest that sufficient information be available regarding public institutions to enable public scrutiny and debate.

8. It is in the public interest that there be scrutiny of the nature and efficacy of the advice given to public institutions particularly given the cost of that advice.

9. It is in the public interest that justice be done and be seen to be done.

10. The deliberative processes to which the documents relate have concluded.

11. Disclosure would not affect the economic efficiency or disrupt the normal processes of the institution to the extent that it would affect the deliberative processes of the institution.

12. The Applicant has received copies of a substantial amount of relevant documents. There is a public interest in the resolution of controversy and upon a just basis and the provision of the balance of the relevant documents would assist this purpose.

13. The documents in question are not privileged or, if they are, privilege has been waived."

39. The respondent made the following submissions :

"1. Legal professional privilege is a common law right which requires a public interest factor of a high order to countervail the doctrine of legal professional privilege.

2. Legal professional privilege should not be overturned in a case such as the present which involves issues the subject of dispute between an employer and its employee, being a case where legal advice was sought and received by the Respondent in contemplation of legal proceedings between the Respondent as employer and Mr Price as employee.

3. It is important that an agency which receives public funding be able to conduct litigation on the same basis as other members of the community, without advantage or disadvantage, a situation which would not exist if the Respondent is not permitted to claim legal professional privilege as an exemption from disclosure.

4. The request made by Mr Price and disputes between the parties relate to the interests of an individual (Mr Price) and not to the interests of the public. Consequently, the public interest requirement specified in section 50(4) is not made out.

5. The matters the subject of the Respondent's claim for legal professional privilege are not matters of public controversy or disquiet. Consequently, the disclosure requested by Mr Price would not advance the public interest as asserted by him or at all.

6. It is not sufficient for the public interest to suggest that access requested by Mr Price would be desirable or militates in favour of release. Rather, the Tribunal must be satisfied that the public interest requires release of the documents in dispute. In this case, there are no considerations of the public interest that are sufficiently strong to demand or necessitate the release of the documents in dispute.

7. The public interest in disclosure, in this case, if it exists (which is denied by the Respondent) is not so strong as to override the common law right to legal professional privilege.

8. Generally expressed public interest issues such as those raised by Mr Price in paragraphs 1, 2, 3, 4, 5, 7, 8 and 9 of his Statement of Public Interest Grounds do not provide any basis sufficient to override the specific exemption otherwise provided by section 32(1) of the Act, even if they are established".

40. The exemption claimed relates to legal professional privilege. On a number of occasions, the Tribunal and its predecessor have considered the application of s.50(4) to documents for which that exemption is made out. In Re Chadwick and Department of Property & Services (1987) 1 VAR 444 at 455-456 Judge Rowlands, President of the Administrative Appeals Tribunal, said that legal professional privilege is a common law right based upon public interest consideration and that it requires public interest factors of a "high order" to countervail the doctrine of legal professional privilege.

41. It will be remembered that this application for access to documents is in the context of an ongoing dispute between the parties. That dispute is currently the subject of proceedings in other jurisdictions, where there is a discovery process. Whilst Mr Price has his own interest in the release of the documents, I am not satisfied that any public interest factors of a "high order" have been demonstrated such that s.50(4) should be applied, to override the specific exemptions made out. Nothing has been placed before me to show that Mr Price's concerns are part of a wider controversy rather than his own concerns and important to him.

42. On 25 July 2001, the applicant lodged an application for review of a deemed refusal to grant access to documents sought. On 30 July 2001, the Tribunal received a communication advising that a decision had been made and seeking that the application be extended to cover an application for review of the decision made. On 16 August 2001, an application was lodged for an order for costs. Included in the reasons for application was a claim that despite the release of various documents after application had been made to the Tribunal, exemptions had been claimed which had no basis in law.

43. The hearing of that application was listed for 27 September 2001 together with the hearing of the substantive application.

44. On 24 September 2001, the Tribunal received a further application from the applicant for an order under s.78(2) of the Victorian Civil and Administrative Tribunal Act 1998 that the proceeding be determined in the applicant's favour and for costs.

45. That application referred to the respondent's failure to file documentation on time in compliance with the Tribunal's directions and again claimed there was no basis in law for the exemptions claimed with regard to the documents withheld.

46. In relation to the first claim for costs, many cases commence at the Tribunal in a similar fashion. I find that there is no basis upon which the applicant is entitled to a costs order for that earlier part of the proceeding.

47. In relation to the second application, I did not grant the order sought which was to determine the proceeding in the applicant's favour. So far as the costs part of the application is concerned, the hearing ran on the day listed and the applicant was not disadvantaged. I have found the majority of the documents for which exemption was claimed exempt from release under s.32(1). The claim that there was no basis in law for the exemption claimed was rejected. As Mr Snowdon submitted, the respondent from the commencement has maintained that exemption as they were entitled to do. In all the circumstances, the failure to comply with directions on time, acknowledged by the solicitor as his fault, is not sufficient to persuade me that the applicant be awarded any costs.